THE RIGHT TO LIBERTY1
A. General Considerations
1. The preamble to the Argentine Constitution states that one of its basic objectives is “to secure the blessings of liberty to ourselves, to our posterity and to all men in the world who wish to dwell on Argentine soil.”
Article 15 stipulates that there are no slaves in Argentina, and that any sale or purchase of persons is a crime. Article 28 establishes that nobody may be arrested except pursuant to a written order from the proper authorities.
Article 23 of the Constitution says that during a State of Siege, constitutional guarantees are suspended, but the President shall not convict or apply punishment upon his own authority, and his power shall be limited with respect to persons, to arresting them or transferring them from one point of the nation to another, if they do not prefer to leave Argentine territory.
2. Since the present government came to power, certain laws have been enacted that affect the right to liberty.
These restrictive laws include first, the Statute of June 18, 1976 on the conduct of persons responsible for harming the supreme interests of the nation: it establishes that the Military Junta shall determine to whom the Statute applies and what measures are to be taken; these measures include confinement in a place determined by the Executive, while such persons are at its disposal.
The Institutional Act of September 1, 1977, was subsequently enacted, Article 3 of which provides that “an arrest ordered by the President in exercise of the powers granted him under Article 23 of the Constitution may be carried out:
a. In a penal or prison facility.
b. In a military facility or a facility of the security forces.
c. In such place as may be determined in each case, with limits being placed on the movement of the person arrested, under a system of supervised liberty.
d. In the home of the person arrested.”
Article 3 of the Statute provides that the President is responsible for indicating the manner in which the arrest will be carried out, taking into account the circumstances of the case and the person’s background.2
Law 21.650 of September 26, 1977 regulates the Institutional Act mentioned above. Chapter one establishes the rules to be followed in making the arrest.
Article 5 of the Law indicates the way in which the system of supervised liberty is to operate.
Article 7 regulates house arrest. The Presidential Decree ordering this form of arrest shall indicate the house where the person must remain, and the military, security or police authority that will supervise the arrest. Lastly, Article 8 states that persons who are in this situation may not move from their fixed domicile and must refrain from holding meetings of any type, except those that are merely family reunions.
Any failure to comply with the conditions set for the supervised liberty and house arrest system will be punished with a six-month to eight-year prison term.
3. The present detention rules under Argentine law, together with the other provisions enacted to suppress subversion, and particularly those that create certain types of crimes and increase sentences, limit the right to liberty. This legal framework, added to invocation of Article 23 of the Constitution, under which the Executive has ordered detention of all persons linked to subversion or with possible links to subversion, patently restricts individual freedoms. While it is true that the Argentine Constitution places no time limit on detentions ordered by the Executive, and prohibits sentencing by the President himself, this type of detention has in practice become a true penalty, without legal due process, since individuals are kept indefinitely under the Executive (PEN).3
The detention of individuals for an indefinite time, without specific charges, without trial, without defense counsel, and without effective means of defense, is a violation of the right to liberty and to due process of law. This is all the more serious if we bear in mind that in many cases, the detainees have been tried and their cases dismissed by the civil or military courts, and they are nonetheless still detained by orders of the Executive. The same situation occurs when individuals have completed their sentence, but despite this, they continue to be detained sine die. In all these cases, it must be understood that while Article 23 of the Constitution grants the President the power to order the detention of persons whom he believes constitute a danger to the public order, nonetheless, this power cannot be used at his discretion, but must be limited to the time needed for a background investigation and then the person must be placed under the authority of either the civil or the military court which has jurisdiction, depending on the case. To maintain that the Executive may prolong detention indefinitely, without bringing the person to trial, would mean converting the Executive into a part of the judiciary, and thus destroying the separation of powers structure characteristic of a democratic system.
The Supreme Court and the Buenos Aires federal Courts of Appeal have reiterated their opinion in a number of rulings that the principle of “reasonableness” must be used in determining whether the detention is or is not indefinite or justified and whether the person has been able to exercise his right to a legal defense. Thus, judges have been urged to request reports from the competent authorities, not only on procedures used to investigate the status of disappeared persons, but also to ascertain whether or not specific charges have been brought against persons detained at the disposal of the Executive.
B. Preventive detentions at the disposal of the Executive
1. The Commission has received a significant number of denunciations stating that there has been prolonged detention of individuals placed at the disposal of the Executive, in exercise of the exceptional powers granted the President under the State of Siege, in Article 23 of the Constitution.
According to the denunciations and information in the possession of the Commission, the situation with regard to these detainees can be classified as follows:
a. Detainees at the disposal of the Executive without trial.
b. Detainees at the disposal of the Executive whose trial is pending.
c. Detainees at the disposal of the Executive whose cases were dismissed by the Courts.
d. Detainees at the disposal of the Executive despite having completed the sentence.
e. Detainees at the disposal of the Executive who have been sentenced by the civil or military courts.
2. The Commission has been processing the denunciations filed in accordance with its Regulations, and has transmitted the pertinent parts to the Argentine government, requesting the corresponding information, in order to determine the legal status of the detainees.
During its on-site observation, the IACHR expressed its concern about this problem to the highest authorities, as it has done in cases in other countries, emphasizing that detention for prolonged periods without due process is in violation of human rights, because it means imposing a real penalty that violates the rights to liberty, justice and due process.
In its replies to the IACHR, both before and during the visit, the Argentine government recognized that there were detainees under PEN, but denied that the detention was arbitrary, referring to the powers granted to the Executive during a State of Siege, and the need to wipe out subversion, in the name of national security.
It is important to note that most of the detentions occurred in operations intended to combat subversion, and that they were similar to those mentioned in Chapter three, in reference to the disappeared. The IACHR is also concerned over the information, denunciations and testimony received during its on-site observation,4 which allege that during the initial stage of apprehension, some of the detainees were not officially recognized, they appeared as disappeared or lived in the same places (in most cases, without full identification) as persons who today are listed as missing.
Some examples based on the denunciations and information received are given below as an illustration of the topic at hand.
a. Persons detained at the disposal of PEN without trial
The following have been or are under this type of detention:
3. Case 2088A – Hipólito SOLARI YRIGOYEN
During its 45th Session, the Commission adopted a resolution on this case. Its main points are the following:
1. The kidnapping in Buenos Aires of former Senator Hipólito Yrigoyen was denounced in a communication and cables dated August 24, 1976.
2. On August 26, 1976, via cable, the Commission transmitted the pertinent parts of this denunciation to the Government of Argentina, requesting that the pertinent information be supplied.
3. The Government of Argentina replied by cable on August 31, 1976, to the Commission’s request and provided the following information:
As a result of investigations, the relevant authorities on the 30th of this month obtained the release of former Senator Solari Yrigoyen and former Congressman Amaya, who had been kidnapped by an as yet unidentified group.
4. In a communication dated September 2, 1976, the Commission transmitted the pertinent parts of the Government’s response to the petitioners and requested any observations that they may have on that response.
5. The claimant, in a note dated September 14, 1976, reported that although former Senator Solari had appeared alive, he was detained and placed at the disposal of the Executive (PEN) by virtue of the enforcement of the State of Siege, and that he was being held in the facilities of the Fifth Army Corps, in the city of Bahía Blanca, in the southern part of Buenos Aires province.
6. The Commission, meeting in its 39th Session, decided to request additional information from the Argentine Government regarding the arrest of Senator Solari Yrigoyen, particularly whether any charges had been brought against him. The above-mentioned information was requested in a note dated December 6, 1976.
7. In a communication dated January 11, 1977, the Government of Argentina replied to the request of the Commission in the following terms:
With regard to this matter, be advised that Dr. Hipólito Solari Yrigoyen is detained at the disposal of the Executive by Decree 1831/76 because of his links with subversive activities; and is in excellent state of health. Also, I wish to inform the Hon. President that he will be duly advised when Dr. Solari Yrigoyen is called to appear before the courts of this nation.
8. In a letter dated January 14, 1977, the pertinent parts of the reply from the Argentine Government were transmitted to the claimants, and they were invited to make further observations.
9. The claimant, in a letter of January 30, 1977, presented the following comments:
The communication of the Argentine Government indicates that “Dr. Solari Yrigoyen is detained at the disposal of the Executive by Decree 1831/76 because of his links with subversive activities.” We wish to remind you that Dr. Solari Yrigoyen and his colleague, Dr. Mario Abel Amaya, who died in prison, were victims of an investigated kidnapping, for which the parties responsible have gone unpunished. They were later detained at the disposal of the Executive, which is evidence that there have been no charges or trial, by virtue of the State of Siege.
As to the affirmation that Dr. Solari Yrigoyen has “links with subversive activities,” this must be proven in a trial, which has not as yet taken place although the communication assures that “you will be duly advised when Dr. Solari Yrigoyen is called to appear before the courts of this nation.” In this regard, it should be noted that according to Argentine law, a citizen may remain incommunicado for five days (5), and after this time he must be brought to trial or set free.
If he is called to appear, Dr. Solari Yrigoyen can exercise his legitimate right of defense, and at the same time this will enable consideration to be given to all the details regarding the kidnapping of which he was a victim. But, the fact remains that Dr. Solari Yrigoyen is serving a virtual sine die sentence, without having been brought to trial and without having been called to appear in court nor has there been any accusation made against him to this date.
The communication of the Argentine Government also states that Dr. Solari Yrigoyen is in an “excellent state of health.” Obviously the information of the authorities fails to include information from those persons who subject the former legislator to corporal and mental punishment. Moreover, the general conditions which exist in Rawson prison are a virtual aggravation of the sentence—in the case of Dr. Solari Yrigoyen and the other prisoners at the disposal of PEN, an illegal sentence—since the physical and mental well being of the political prisoners are being harmed in violation of the Constitution.
10. In a communication dated February 10, 1977, the claimant sent to the Commission a copy of the affidavit of the federal lower Court, containing the following:
I HEREBY CERTIFY: Under the Law, that Dr. Hipólito SOLARI YRIGOYEN has not been brought to trial in any proceedings of this Court, that this Court has not sought nor is interested in his detention, and that there is no impediment in the court to his leaving the country. Furthermore, it is stated that the above-named professional man was questioned under the terms of article two hundred thirty-six, second paragraph, of the Criminal Code, in case Nº 378, folio 183, year 1976, entitled “Annotated Summary to determine alleged violation of Law Nº 20.840,” that he was at no time charged in the above-mentioned case, in which a temporary stay was issued on the second day of December 1976 (Art. 435, par. 1 of the Criminal Code), with a statement that no person had been brought to trial.
11. In notes dated May 9 and 19, 1977, the Government of Argentina advised the following:
I am pleased to write to you with regard to case 2088 and, on instructions from the Ministry of Foreign Affairs of Argentina, to advise you that by Executive Decree Nº 1098 authorization has been granted for the person detained at the disposal of the Executive, Hipólito Solari Yrigoyen, to leave the country.
Dr. Hipólito Yrigoyen left for Venezuela on May 17 of this year, on VIASA flight 941.
12. The Commission received from the claimants a letter dated October 16, 1977, containing the following declaration of Mr. Hipólito Solari Yrigoyen.
I have noted the reply of the military Government of Argentina dated September 1, 1976, and the report dated January 11, 1977, regarding the arbitrary detention that I was subject to.
I feel obliged to indicate that the affirmations contained in those reports are false:
1) I was never “kidnapped by unidentified groups.” I was arrested on August 17, 1976 in a military operation ordered by the Chief of Security and the Second Chief of the V Army Corps, with headquarters in Bahía Blanca; the order was carried out in Area 536, with headquarters in Trelew. I was arrested at my home address, Puerto Madryn, Province of Chubut, by uniformed military who later plundered my home and blew up my car.
2) It is not true that I was “set free” by police authorities on August 30, 1976. I was transferred from Communications Regiment 181 in Bahía Blanca, where I had been kept, to the city of Vidma, where I was thrown on to the side of the road, and immediately picked up by a police car. My illegal arrest thus became a legal arrest. Both before and after the alleged “liberation” I was subject to cruel torments.
3) I have never had links with subversive activities of any kind. I have always condemned any kind of violence. I was never charged before a court, nor have I been brought to trial. I was detained for nine months at the disposal of the Executive until I was expelled from the country and forbidden to return.
4) Congressman Mario Abel Amaya was also arrested on August 17, 1976 at his home address in Trelew, Province of Chubut and went through the same events as I until September 11, 1976 when we were both transferred in a navy airplane from Bahía Blanca to the Naval Air Base “Almirante Zar” in Trelew, and from there to Rawson prison. As a consequence of the brutal punishment we received in the Base and in the prison, and the lack of medical attention during the early days, Congressman Amaya who was in critical condition, was transferred to the hospital of Villa Devoto Prison in Buenos Aires, where he died on October 19, 1976.
13. In a letter dated August 1, 1978, the claimants provided the following additional information:
We also wish to point out the violation of human rights being committed in cases in which the individual is prohibited from returning to his country. In fact, according to the so-called Law 21.228 decreed by the Military Government on June 25, 1976, the penal code included—in art. 281 (ter.)—sentences of up to four years in prison for those persons who leave the country, and there is a decree placing them at the disposal of the Executive, as in this case, should they ever return.
A further flagrant violation of human rights is the treatment received by Congressman Amaya and by Dr. Solari during the time they were in prison. As a consequence of the beatings and tortures they were subjected to, Congressman Amaya died and Dr. Solari’s health seriously deteriorated.
14. In a note dated August 4, 1978, the Commission transmitted to the Government of Argentina the pertinent parts of the additional information supplied by the claimants. As of this date, there has been no reply from the Argentine Government.
1. In the light of the preceding, it appears that Dr. Hipólito Solari Yrigoyen was detained and tortured by the Argentine authorities.
2. In a note dated January 11, 1977, the Government of Argentina told the Commission that it would duly advise it when Dr. Solari was to be called to appear before the courts of the nation, but such information has not been supplied by this date.
3. Dr. Solari Yrigoyen, due to a lack of guarantees for his personal safety, was obliged to abandon Argentina and was authorized to do so by the Government through Executive Decree Nº 1098 of 1977.
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
1. To advise the Government of Argentina that such acts constitute very serious violations of the right to liberty, to personal security (Art. I); to the right to residence (Art. VIII); to the right to a fair trial (Art. XVIII); and the right to protection against arbitrary arrest (Art. XXV) of the American Declaration of the Rights and Duties of Man.
2. To recommend to the Government of Argentina: a) that it order a complete and impartial investigation in order to determine responsibility for the reported actions, b) that in accordance with Argentine law, the persons responsible be duly punished, and c) that a report be made to the Commission, within a maximum period of 30 days, regarding the measures taken to implement the recommendations listed in the present Resolution.
3. To communicate this Resolution to the Government of Argentina and to the claimants.
4. To include this Resolution in the Annual Report to the General Assembly of the Organization of American States pursuant to Art. 9 (bis), paragraph c. iii of the Statute of the Commission.
The Argentine Government, in a note dated February 27, 1979, replied to the Commission denying actions attributed to it in the resolution. Some of the Government’s considerations are:
The alleged “illegal detention” of Dr. Solari Yrigoyen
It is totally untrue that the above-named party was arrested on August 17, 1976. On that date, Mrs. Teresa Marta HANSEN DE SOLARI YRIGOYEN denounced the apparent kidnapping of the claimant by unknown and unidentified persons. This denunciation was presented to the District Police Station (Comisaría Distrito) of the city of Puerto Madryn (Chubut Police) and with the intervention—on that same day—of the Provincial Judge (Primera Instancia) of the Section, headquartered in the city of Trelew.
On the 20th day of the same month and year, the investigation originating in that denunciation was presented to the Federal Court (Primera Instancia) in the city of Rawson (Chubut Police) by Dr. Omar D. Garzonio, Secretary of Dr. Esteban Cerra, which gave rise to Summary Examination Nº 662/206/1976, entitled: SOLARI YRIGOYEN, re: alleged kidnapping.
This legal dossier of 190 folios, includes all the measures ordered by the judge who intervened ordering clarification of the facts, after the Magistrate decided on December 15, 1978, to grant a temporary stay to the case, pursuant to Art. 435, paragraph 2 of the Criminal Code. This file is at present before this Court.
Consequently, the allegation presented by Dr. Solari Yrigoyen to the Commission that he was “arrested” by Argentine authorities is inaccurate. He was kidnapped by persons who, in doing so, committed the crime of illegal detention (Art. 141 et seq. of the Criminal Code), and whose identity is sought both by the police and the courts, as prescribed by the Argentine law.
It should further be indicated that the claimant himself made a statement on October 1, 1976 before the aforementioned Judge, making no mention at all—in spite of enjoying full guarantees for doing so—of the alleged “arrest” nor giving the name of the persons whom he later accused of this act when he approached the Commission. We cannot pretend that there be an investigation of or judgment on facts and data that he himself concealed or kept silent from the police authorities and the Magistrate in this case.
And furthermore, Dr. Solari Yrigoyen—who, being a lawyer cannot be unaware of the laws of his country—did not exercise his right to present himself as a private plaintiff or accuser, pursuant to Art. 170 of the Criminal Code, in spite of the fact that he could at any time do so and can still do so by means of a power of attorney (since he is abroad). Therefore, it is not the Argentine Government that has violated the rights and guarantees of Dr. Solari Yrigoyen, but rather he, who, being able to do so, has not made use of these rights and guarantees.
The search operation for the defendant decreed by the Argentine authorities:
On the same day that the denunciation of the alleged kidnappings of Dr. Solari Yrigoyen was received, a broad search operation was officially initiated. This information was published in the newspapers, through official channels, as can be seen in the clipping from the newspaper “La Nación”, of 8.18.76, a photocopy of which is attached as Appendix 2.
As a result of this search operation, personnel from the Federal Police Detachment in Viedma were able to obtain the release of the claimant on August 30, 1976. This occurred under circumstances in which Dr. Solari Yrigoyen and Dr. Mario Abel Amaya were being transported (tied and blindfolded) in a vehicle whose other occupants, on noting the police chase, threw them alongside the road, while at the same time shooting at the police.
The above-mentioned information is taken from the newspaper “La Nación” of August 31, 1976, which is included as Appendix 3, as well as from the statements made by both persons freed, in the above-mentioned Dossier Nº 622/206/1976 of the Federal Court (Primera Instancia) of the City of Rawson (folios 80/82).
It should also be noted that on that occasion both parties indicated that on being led to the police station, they were treated by medical personnel of that detachment (conf. idem).
Arrest at the disposal of the Executive
By Decree 1878, of September 1, 1976, Dr. H. Solari Yrigoyen was arrested and placed at the disposal of PEN, in the city of Bahía Blanca. This Decree and the subsequent arrest were based on the State of Siege in force, and were carried out within the ambit of the powers granted to the Executive by Art. 23 of the Constitution.
It should be noted that at that moment, Dr. Solari Yrigoyen was under suspicion of a possible violation of Law Nº 20.840 which deals with subversive activities, before the Federal Court (Primera Instancia) in the city of Rawson.
The case was tried under Nº 633/128/1975 entitled TOMASELLI, Víctor Enrique et al. on Violation of Security Law – a handwritten letter from the terrorist group “Montoneros” implicated Dr. Solari in activities linked to that group.
The Judge received the investigatory statement under the terms of Art. 236, part 2 of Criminal Code, and it was decided to grant a provisional stay to the proceedings as of December 2, 1976.
The trial had started on June 15, 1976.
This Government greatly appreciates the interest shown at all times and under all circumstances by the Inter-American Commission in the protection and defense of human rights, and its access to the denunciations and information being sent to it in the performance of its duties, as well as the painstaking care in fully clarifying the situations submitted for its views and judgment.
This leads us to the justified expectation that the charges that were presented as background for Resolution 18/78 be carefully evaluated—charges that are not always true or that are not notably correct—along with the information given above.
The Government of Argentina deems that this information is a true and documented frame of reference, which make it feasible and vital that the terms of the three clauses of the preamble to the above mentioned resolution be reviewed and even, in consequence of the above, that the points contained in the resolution itself be reviewed.
With regard to the observations of the Argentine Government regarding the case of former Senator Hipólito Solari Yrigoyen, the Commission considers that revoking Resolution 2088A is unwarranted, for the following reasons:
a) The kidnapping of Dr. Hipólito Yrigoyen presents the same characteristics as most of the military operations carried out in Argentina by forces acting with the knowledge of the government authorities.
b) Although Dr. Solari Yrigoyen did not denounce to the authorities that he had been tortured, it is clear that there were not sufficient guarantees for him to come forward with such denunciations. The Supreme Court in the Pérez de Smith, et al. case, stated that, in effect, a situation of deprivation of justice existed due to causes beyond the control of the Judiciary.
c) Although the Government says that on August 30, 1976, the Federal Police succeeded in obtaining the release of Dr. Solari Yrigoyen, he was not in fact released, but was led to a place of detention, and on September 1, 1976, through Decree 1878, he was placed at the disposition of the Executive, and was detained until he was granted the option to leave the country.
d) It was stated that Dr. Solari Yrigoyen was involved in subversive activities, but although proceedings were begun, they were dismissed, and he remained in detention without being charged until he was granted the option to leave the country; and
e) The Government of Argentina in its reply to the Commission acknowledges that if Mr. Solari Yrigoyen legally returns to Argentina, he will again be detained unless the warrant for his arrest is invalidated, which represents a violation of the right to residence, particularly since Dr. Solaris’ case was dismissed by the lower court Federal Judge and there are no proceedings pending against him.
1. Case 2353 – Jorge Alberto TAIANA
The IACHR received the following denunciation:
Dr. Jorge Alberto Taiana, 65 years of age, surgeon and Minister of Education and Culture in 1973, was detained by the Federal Police in Buenos Aires on April 5, 1976. He is now being detained under Institutional Act Nº 2 of the Military Junta. To date no formal charges have been brought against him and he has been denied due process of law.
The Argentine Government replied to the request for information of the Commission in a note dated October 25, 1977, in the following terms:
A. MEMBERS OF THE SUBVERSIVE TERRORIST GROUPS, ERP AND MONTONEROS, AT THE DISPOSITION OF THE EXECUTIVE, FOR HAVING COMMITTED CRIMES OF TERRORISM, ILLEGAL POSSESSION OF ARMS AND WAR SUPPLIES, ILLEGAL ASSOCIATION AND OTHER TERRORIST SUBVERSIVE CRIMES AS SET FORTH IN THE ARTICLES OF LAW 20.840 ON SECURITY OF THE STATE:
7. TAIANA, Jorge Alberto. PEN Decree 1205 of 5-76; held in Magdalena by Resolution Nº 2 of the Military Junta.
In a note dated August 2, 1978, the IACHR asked the Government to indicate if charges had been brought against Dr. Taiana.
On August 6, 1979, the Commission again addressed the Government o request additional information.
The Government of Argentina informed the Commission in a note received on March 27, 1980, of the following:
The conduct of Jorge Taiana was considered by the Military Junta as contrary to the higher interest of the Nation, for which reason it decided to apply, through Resolution Nº 2, the measures set forth in Article 2, subparagraphs a) and e), of the Act signed into law on June 18, 1976.
As a result of the foregoing, the Executive established the site for his detention in Decree 1205/76.
Furthermore, it is important to point out that Taiana has exercised none of the rights which the law places at his disposition to contest the measures adopted in this regard.
During its on-site observation, the Commission interviewed Dr. Taiana in the military prison of Magdalena, and had the opportunity to speak at length with him.
5. Case 2114 – Dora GOLDFARB and Pedro LUCERO
The Commission received the following denunciation:
Dora Goldfarb, a Judge in Mendoza, and her husband, Pedro Lucero, were detained on March 24, 1976, and held in the military prison of Mendoza without charge. They were placed at the disposition of the Executive under Decree 1120 of June 29, 1976. Dora Goldfarb was later detained in Villa Devoto.
The Commission asked the Government for information as to the reasons for Mrs. Goldfarb’s initial detention in an institution for common criminals. The claimant later informed the Commission that Mr. Pedro Lucero had been released. Lucero’s wife finally obtained authorization from the Government to leave the country. The claimant alleges that during their detention they were submitted to inhumane treatment and were cruelly tortured.
In a note dated February 4, 1977, the Government replied:
In this regard allow me to inform you that Dora Goldfarb is being held at the disposition of the Executive under Decree 1120, dated June 9, 1976, for having been involved in activities that affect domestic peace and the national interest.
On the other hand, the Executive released Pedro Lucero under Decree 3472 of December 29, 1976.
Subsequently, in a note dated May 9, 1977, the Government of Argentina advised the Commission that the detainee, Dora Goldfarb, had left the country.
The victims are now at liberty. Mrs. Lucero was detained for almost one year without charges having made against her and without due process of law.
The Commission, currently considering this case, asked the Government for additional information on May 2, 1979. With reference to this request, the Government informed the Commission as follows:
Furthermore, in the additional information that was provided, it is stated that Lucero was “cruelly tortured”, and that he now suffers from permanent physical and mental damage”, and that Dora Goldfarb was imprisoned “under shocking conditions, and subject to ill-treatment,” and denied her rights for more than a year.
The Government of Argentina categorically denies having inflicted punishment or physical or moral torture either on those in question, or on any other detainee, and therefore denies that he suffers from any of the illnesses mentioned in the denunciation.
With regard to the conditions of Dora Goldfarb’s detention, it should be pointed out that she received the same treatment other detainees received in accordance with prison regulations now in force, as the Commission was able to verify during its on-site observation. With regard to the statement that she was denied her rights for more than a year, this is totally false and contradictory as well, because in fact she did exercise the above-mentioned right of option.
This case is still under the consideration of the IACHR.
6. Case 2127 – Gustavo WESTERKAMP
At its 46th Session, the Commission adopted a resolution on this case. The background to the case states the following:
1. In a note dated November 17, 1976, the Commission received a denunciation concerning the detention, imprisonment and ill treatment of Mr. Gustavo Westerkamp by the Argentina authorities.
2. The Government of Argentina in response to an oral request from the Executive Secretariat of the IACHR, provided the pertinent information in a note dated February 4, 1977, indicating the following:
With regard to the case of the Argentine citizen, Gustavo Westercamp, he is at the disposition of the Executive by virtue of Decree 3076 of October 23, 1975, for having been involved in activities that are prejudicial to the public order and the basic interests of the State.
3. The Commission, in a note dated May 24, 1977, transmitted to the claimant the pertinent parts of the Government of Argentina’s reply and asked him to put forward observations with regard to that reply.
4. The Commission decided to officially transmit the pertinent parts of this denunciation to the Government of Argentina, and on June 30, 1977, it addressed the Government and requested that the corresponding information be provided.
5. The Government of Argentina in a note dated September 29, 1977, replied to the Commission as follows:
A) Members of the subversive terrorist groups the ERP and Montoneros, at the disposition of the Executive, for having committed crimes of terrorism, illegal possession of arms and war supplies, illegal association and other terrorist subversive crimes, as set forth in the articles of Law 20.840 on security of the State.
17. WESTERKAMP, Gustavo: PEN, document 3076 of October 23, 1975. Held at Sierra Chica.
6. The Commission, in a note dated October 13, 1977, transmitted the pertinent parts of the reply of the Government to the claimant, and requested that he formulate observations with regard to that reply.
7. In June 1978, the claimant provided the additional information as follows:
Gustavo was arrested on October 21, 1975 when he appeared at the military headquarters in Palermo, Buenos Aires, for the requisite medical and physical examination prior to entering compulsory military service. He appeared at headquarters early in the morning. When the examination was completed, upon leaving the building, at approximately mid-day, he was violently overtaken by four armed men in civilian dress. After being severely beaten and blindfolded, he was violently and forcefully put into an automobile and taken to the Superintendence of Federal Security, located on Calle Moreno 1417 in the Capital. There Gustavo was barbarously tortured for 48 hours during which time he was given neither food or water. He remained blindfolded. As he lay on the floor, everyone that passed kicked him, spit on him, or urinated on him. The blindfold was repeatedly soaked in an irritant which produce burns around his eyes. He was tortured with an electric prod and his genitals were beaten with chains in an effort to obtain information. He was finally forced to sign a statement while blindfolded.
From approximately October 28, 1975 to September 6, 1976, Gustavo was confined to the prison Unit 2 in Villa Devoto in the city of Buenos Aires, where conditions were terrible. During a large part of the time he was confined to a cell for two persons which he shared with four other inmates. Three of them slept on a light mattress on the floor. Sewage water frequently flooded the cell. The only sanitary facility was a hole in the floor, surrounded by insects and rodents. He was permitted practically no activity. The diet was poor and scant, and on many occasions he was sent to the punishment cell without cause.
He was transferred to Sierra Chica prison (Unit 2), near Olavarría, in the province of Buenos Aires, together with approximately 60 other detainees, where he was brutally beaten. Marks from the blows could still bee seen. Gustavo was forced to sign another statement however, which said that those marks resulted from an accident.
Gustavo was imprisoned in Sierra Chica prison for approximately one year, from September 6, 1976, to September 21, 1977. During most of this period, he was kept in a small cell, alone, for 23 hours each day. He had only 60 minutes of recreation. He was awakened at 5 in the morning and was only allowed to go to bed at 9:00 pm. During the day, the mattress was rolled up. He was not allowed to do any physical or intellectual work. The purpose of this was clearly to paralyze him, both mentally and physically; that is to say to bring about the progressive destruction of his personality. For the same reason he was not permitted to receive books or scientific publications, nor was he permitted a transistor radio. During the winter, which in that region is very severe, he was exposed to extremely low temperatures and provided no heat. The cell window, furthermore, had no glass. He was ill for a week without receiving medical attention or medication.
Finally, on September 21, 1977, Gustavo was transferred from Sierra Chica to Unit 9 in the city of La Plata. During the first two weeks he was again beaten while being submitted to interrogation. At this time, Gustavo was sharing his cell with another political prisoner. They were not allowed to read newspapers or books, nor to listen to the radio, watch television, or participate in any other form of diversion. The diet was very poor. Recreation limited to two hours in the morning and two hours in the afternoon. Discipline was very severe and on the whole designed to humiliate him, break his will, and destroy his mind.
From the legal viewpoint, Gustavo was being held at the disposition of the Executive by Decree Nº 3076/75, without any charges or accusations against him. He is, therefore, a typical political prisoner. His detention is based on the powers granted to the President under Article 23 of the Constitution for cases during a state of siege. It is, however, well known that the Constitution has been undermined by two institutional acts issued by the Military Junta, which in fact holds power. The first act, dated March 24, 1976, suspends the right of option to leave the country, which is set forth in the corresponding article of our Magna Carta. The second, signed into law on September 10, 1977, re-establishes that right, but conditionally, making it subject to the decision of the President and requiring several conditions set forth in Law 31.650.
In our constitutional system, however, this power of the Executive is not entirely discretionary. Both doctrine (cf. Germán S. Bidart Campos: Derecho Constitucional, Edlar, Buenos Aires 1964, vol. I, p. 610 et seq.), and the jurisprudence of the Supreme Court, are almost in unanimous agreement that, “although the declaration of the state of siege is a political act, which is beyond the judgment of the Judiciary, it is the latter-s responsibility to ensure that such state of siege is reasonably implemented by the Executive in cases that are brought before the Judiciary” (judgment rendered in the case Zamorano, Carlos Mariano, La Opinión, August 13, 1977, and the decision in Pérez de Smith, Ana María, et al. re effective denial of fair trial, P. 327-XVII-ORIGINARIO of April 10, 1977).
In view of this, there can be no doubt that prolonged detention without cause, apparently for security reasons which are never specified, for more than two and a half years, exceeds any “test of reasonableness” and clearly constitutes distortion of the principle of the separation of powers set forth in the Constitution. In effect, by prolonging detention without bringing formal charges or initiating proceedings, the President, in effect, has handed down a sentence, thus assuming judicial functions, which is expressly prohibited by Article 95 of the Constitution.
It is true that Gustavo was previously detained on March 14, 1974 and charged with illegal association. However, proceedings were dismissed by the Federal Judge on June 17 of the same year, for which reason his detention at this time lacks any legal basis or even elementary rationale.
8. The Commission, in a note dated August 10, 1978, transmitted the foregoing additional information to the Government of Argentina, and requested that it provide information. To date the Government has not replied.
9. In a note dated December 2, 1978, the claimant informed the Commission that Mrs. Westerkamp has been again transferred from the prison of La Plata to Sierra Chica; he has been confined for three years and two months at the disposition of the Executive without due process of law, and he has been denied a second request to exercise the right of option to leave the country.
10. The Commission, in a note dated June 30, 1977, in requesting information on these events, asked the Government of Argentina for any opinion that would allow the Commission to determine whether or not all domestic legal remedies had been exhausted; the silence of the Government in this regard implies that there is no further remedy.
The Commission recommended that Mr. Westerkamp be released and that the Government undertake an investigation to determine the factual basis of the event denounced as regards his ill treatment.
The Government of Argentina, in a note dated March 20, 1979, explained that the prolonged detention was due to exceptional rules that the Argentina Constitution grants to the Executive during a state of siege. In addition, it set forth the reasons for which it has repeatedly denied Mr. Westerkamp the right of option to leave the country.
Subsequently, in a note dated October 17, 1979, the Government provided further information with regard to the ill treatment that had been denounced, and make known the results of the writ of Amparo and of the investigation that had been ordered to clarify the illegal actions that had been denounced. The Court ordered a stay of proceedings pursuant to the provisions of Article 435, subparagraph 1, of the Code of Criminal Procedure, which establishes: “There may be a stay of proceedings: 1) when the evidence gathered in the case is not sufficient to demonstrate that a crime has been committed.”
The IACHR visited Mrs. Westerkamp at Rawson prison, and verified that he is still being detained exclusively at the disposition of the Executive, without charges or trial.
b. Detainees at the disposition of the Executive with pending trials
With regard to this class of detainees, the IACHR has received the following denunciations:
7. Case 3482 – Raúl Héctor CANO
The IACHR received the following denunciation:
Raúl Héctor Cano: born in San Juan, Province of San Juan, on November 19, 1948, occupation: automobile mechanic, has been detained at the disposition of the Executive since May 27, 1976, under Decree 657/76, and is being held at Unit 9 prison of La Plata, in the Province of Buenos Aires.
This detainee’s case was dismissed by Dr. Mario Alberto Geranduzzi, Federal Judge of San Juan on February 10, 1977, although he remains in detention.
The Argentina Government, in a note dated August 9, 1979, replied:
The person in reference was detained on March 29, 1976, and tried for violation of Security Law 20.840. On June 2, 1976, he was placed at the disposition of the Executive pursuant to the constitutional powers thereof, for activities considered to be prejudicial to public order and peace.
With regard to the case brought before the Federal Judge in the Province of San Juan, a stay of proceedings was given on February 1, 1977, which was confirmed by the Federal Court of Appeals of Mendoza. Enclosed is a copy of the respective order. It should be pointed out that, in accordance with the provisions of the Code of Criminal Procedure, applicable to federal jurisdiction, a person who is given a temporary stay (Art. 435 of the LPP) continues to be under investigation.
The individual in question requested the right of option to leave the country according to Law 21.650, dated October 11, 1978.
This request was denied by Decree Nº 176/79, on the basis of the provisions of Law 21.650, and in exercise of the powers therein granted. In accordance with the provisions of Article 13 of the above-mentioned Law, another request may be submitted 6 months subsequent to the Decree, which denied the former request, although to date no such request has been received.
The IACHR is currently processing this case as prescribed by its regulations, but advises that at present the Government’s reply does not refute the events denounced.
c. Detainees at the disposition of the Executive (PEN) whose cases have been dismissed by the courts
8. Case 3905 – Norberto Ignacio LIWSKY
The IACHR received the following denunciation on February 27, 1979:
Norberto Ignacio Liwsky, physician, married, two daughters, 32 years of age; on April 25, 1978, a group of heavily armed persons entered his domicile by force, robbed him and attacked him, and intending to kidnap him, wounded him by shooting him in both legs. He was kidnapped and tortured with electricity throughout his body, especially on the genitals; he was whipped for days, and burned with a branding iron also placed on his genitals. His health seriously deteriorated as a consequence during the two months leading to his “appearance” with eight other persons in detention in a Buenos Aires police station. There he was held in a cell measuring 2 x 2 meters without sanitary facilities, and without sunlight for two months, during which time the legal remedies introduced on his behalf returned negative results. In a decree issued in August, the Executive ordered that he be detained.
He was then transferred to Villa Devoto prison and informed that he was under the jurisdiction of the military and at the disposition of the Executive. He came before Military Tribunal headquarters, Command 1, in Palermo, Buenos Aires, which stated that it does not have jurisdiction over this case and which transferred it to the federal judicial system for trial, stating that it is neither a crime of terrorism nor subversion, for which reason it expects the Court to endorse its decision.
In a note received by the Commission on March 27, 1980, the Government of Argentina replied as follows:
According to the statements of the claimant, Liwsky was kidnapped from his domicile on April 25, 1978, by a group of armed persons, from whom he received gun wounds in both legs. He states that, while kidnapped, he was beaten and tortured, and the statement goes on to say that “his health seriously deteriorated as a consequence during the two months leading to his appearance” together with eight other detainees in a police station in the city of Buenos Aires.
This is a malicious attempt to represent as a single fact two events of very different origin. The first in April of 1978 concerns an alleged kidnapping of the individual in question. This act, its nature, and authors are now the subject of judicial investigation. The other event is the detention of Liwsky, which took place on June 1, 1978, at Gregorio Laferrere, which gave rise to the initiation of a suit charging violation of Law 21.325, under the jurisdiction of the Special Military Tribunal Nº 1.
The individual in question was detained at the disposition of that Tribunal in the police station located in Gregorio Laferrere until August 22, 1978, at which time he was transferred to Unit 2 of the federal Penitentiary Service.
In the interim, through Decree Nº 1613 of July 18, 1978, the Executive ordered that Liwsky be arrested pursuant to Article 23 of the Constitution.
On December 29, 1978, the Military Tribunal declared that it did not have jurisdiction to hear this case, for which reason it was returned to the federal justice system, and heard by Federal Court Nº 2 in Buenos Aires. On July 20, 1979, the latter dismissed the case with regard to the crime under investigation.
At this time, Liwsky is in detention at the disposition of the Executive, and is being held at Unit 1 prison. It should be pointed out that, at this time, a writ of habeas corpus on his behalf is before the federal Criminal and Correctional Court of Appeals, which remedy provides judicial review over the reasonableness of the measure taken by the Executive, which charge was based on the consideration that LIWSKY’s activities were contrary to domestic peace, tranquility, and public order.
With regard to the claimants’ statements in reference to ill-treatment and torture, it should be pointed out that, should this have occurred while he was kidnapped, it falls within the jurisdiction of the Judiciary to investigate the acts and to the interested party to contribute the pertinent evidence, if he has not already done so.
During its visit, the Commission obtained a certified copy of the judgment rendered by federal Judge Dr. Marín Anzoátegui, on July 20, 1979, which dismisses the case and orders that Mr. Liwsky be released. Nevertheless, he is still being detained at the disposition of the Executive at Unit 9 in La Plata. The Commission had the opportunity to interview Mr. Liwsky in that prison.
9. Case 3382 – Mario Raúl BELSUZARI
The IACHR received the following denunciation:
Mario Raúl Belsuzari, born in the Province of Salta, has been detained at the disposition of the Executive (PEN) since mid-June 1975, charged with violating National Security Law 20.840. He was acquitted in Salta by federal Judge Dr. Richard Lona on January 13, 1978, for lack of evidence. However he is detained under Decree Nº 1876/75, which is undated, in Unit 9 prison of La Plata, in the Province of Buenos Aires.
Belsuzari is by profession a teacher, having studied geology at the National University of Salta.
He had opted to leave the country, in accordance with Art. 10 of Law 21.650, and has submitted a visa request to the Swedish Embassy in Buenos Aires. On February 17, 1978, the Correctional Service, Unit 9, Province of Buenos Aires, issued certification to the effect that the detainee had asked to invoke the law in question.
In a note dated August 21, 1979, the Argentine Government replied as follows:
Belsuzari was detained on June 19, 1975, in the city of Salta, because of his association with terrorist organizations, primarily those that operated out of the National University of Salta.
He was arrested and placed at the disposal of the Executive (PEN) by Decree Nº 1876 of August 10, 1975; the grounds invoked for the measure were the need to guarantee social peace, public security and institutional order within the country.
He was also brought to trial before the federal Judge of the Province of Salta, for violation of Law 20.840. He was acquitted in connection with the specific criminal activity with which he was charged and the ruling was upheld by the Court of Appeals of the city of Tucumán.
At the present time, he remains at the disposal of the Executive, since the causes and reasons for his detention are considered not to have disappeared.
It is true that Belsuzari, exercising his option to leave the country, under Article 23 of the Constitution, has visas issued by the Embassies of Spain and Sweden on his behalf on file with the Government; on one occasion he was denied the opportunity to emigrate by Decree Nº 15 of January 3, 1979.
The Government’s denial was neither whimsical or unfounded; rather it was the result of the Nation’s legitimate right to analyze the advisability of granting the petition and is in conformity with the standards imposed by Law 21.650, which governs the exercise of the right of option. In this way, this Government, having analyzed the case history of the individual in question, has concluded that it is inadvisable to grant his petition, on the understanding that any other decision would mean that the detainee—once he has regained his freedom—would continue to engage in subversive activities by joining terrorist organizations which act even from abroad and of whose existence the members of the Commission are aware.
Furthermore, the detainee may resort to judicial remedies to determine the reasonableness of these administrative measures; it should be pointed out that the Supreme Court has acted on such matters on a considerable number of occasions, and this Government has accepted its decisions.
At the present time, the Commission is processing the case in accordance with its Regulations. According to a note received from the Argentine Government, dated December 4, 1979, Mr. Belsuzari left the country for Sweden.
d. Detainees at the disposal of the PEN despite having completed their sentence
Among the denunciations received by the IACHR on individuals who continue to be detained even though they have completed the sentence imposed against them, the following may be mentioned:
10. Case 3422 – José Luis MEDELA
On October 17, 1978, the IACHR received the following denunciation:
José Luis Medela, single, 23 years of age, a radio and television technician, was detained on March 17, 1974, charged with illegal association and sentenced to three years imprisonment, which he completed on March 17, 1977. Having completed his sentence he was placed at the disposal of the Executive (PEN). He has requested that he be granted the option to leave the country, but that request has been denied on two occasions. At the present time he is in La Plata prison.
The Argentina Government in August 1979 replied to the IACHR’s requests for information. The principal parts of that reply state the following:
As to the inquiries made in connection with Medela, which have been duly recorded, the fact is that he was detained on March 16, 1974, by members of the Villa Martelli Police Force, Buenos Aires Province; he was detained along with two other individuals; many firearms and extremist literature belonging to illegal organizations were taken from them; Medela claimed to be a member of the Revolutionary Army of the People, August 22nd faction (Ejército Revolucionario del Pueblo, 22 de agosto), an armed extremist group which operated clandestinely. He was tried for the crimes of illegal association and illegal possession of arms and explosives before the federal Judge of the San Martín District, Buenos Aires Province; he was sentenced by the Second Court of Appeals to a term of three years imprisonment, for the crime of subverting the public order. He was confined in the prison in the Capital.
On January 28, 1975, while the Constitutional Government was still in office, he was placed at the disposal of the Executive (PEN) for having been found to be closely linked to extremist activities aimed at disrupting the pace; at that point he was regarded as an element that continually attempted to subvert the domestic order and peace.
On June 1, 1977, he initiated the procedure to opt to leave the country, invoking Law 21.449. The petition was denied since he was considered a threat to the peace and security of the Nation under Article 2 of that law.
On May 5, 1978, he again initiated the procedure to leave based on a new Law Nº 21.650, which was denied on the same grounds invoked earlier, and because his record described him as a professional terrorist.
As can bee seen, it is clear that the truth is not in keeping with the information presented in the denunciation; quite to the contrary. Medela was never denied a reply to the petitions he submitted, as on each occasion the grounds for the refusal were given.
As for the powers of the Executive to act as it did in this case, they are beyond question, given the considerations taken into account by the jurisdictional power reviewing the situation. It is obvious that the present historical circumstances and those immediately preceding render innocuous the powers granted under Article 23 of the Constitution, due to the abusive exercise of the right of option to leave the country by (PEN) detainees.
Thus, the restrictions which under normal circumstances would be illegitimate, are rendered legitimate under special or extraordinary circumstances, when it is appropriate to consider the more important values vis-à-vis public order or community order, which can only be achieved at the cost of restricting individual rights.
Despite what has been noted in connection with the personal characteristics of the detainee, it should be added that on July 11, 1979, by a Decree issued by the Argentine Government, the detainee was authorized to leave the country for Sweden, as the authorities were of the opinion that the citizen in question could not jeopardize national security if allowed to leave Argentina.
During its visit, the IACHR was able to confirm that in fact the detainee was at last authorized to leave the country.
11. Case 3390 – Hugo Rubén PERIE
The Commission received the following denunciation:
Hugo Rubén Perie, born in Posadas, Misiones Province, was detained in the city of Buenos Aires on July 20, 1975, and is being held at the disposal of the Executive (PEN) by virtue of Decree Nº 2045 of 1976, in prison, Unit Nº 9, in La Plata, Province of Buenos Aires.
In response to the Commission’s request for information, the Government replied in a note dated October 17, 1979, from which the following excerpt is taken:
The Argentine Government reports that Hugo Rubén Perie was sentenced August 29, 1977, by the federal Judge of La Plata, to a term of four years, six months imprisonment for violating Article 292, paragraph 2, and Article 296 of the Penal Code, for a compound offense; that sentence was changed later by the federal Court of Appeals of La Plata, and Perie’s sentence was reduced to four years imprisonment which ended, with time already served included, on July 22, 1979 at twelve o’clock midnight.
In view of the danger demonstrated by Perie’s terrorist activities and by the fact that he was a high-ranking member of the gangster/terrorist organization known as the “Montoneros”, the Executive feels it advisable, exercising powers provided for in the Constitution (Art. 23) to keep Perie under detention; it is of the opinion that his release or his exit from the country would pose a threat to the domestic peace. While it is Perie’s human right to enjoy freedom, it is also a human right—not just of one individual, but of thousands of Argentines—to live in peace. This is undoubtedly the basic concept underlying Article XXVIII of the American Declaration of the Rights and Duties of Man.
This reply calls for some comments from the IACHR. To argue that an individual who has been sentenced and has completed his sentence cannot be released because “while it is Perie’s human right to enjoy freedom, it is also a human right—not just of one, but of thousands of Argentines—to live in peace,” is a misinterpretation of Article XXVIII of the American Declaration of the Rights and Duties of Man. In fact, thousands of Argentines could not “live in peace,” in the absence of the security that the decision of the Judiciary would be respected.
e. Detainees held at the disposition of PEN, who have been sentenced
During its on-site observation, the Commission visited various prisons where it spoke with a number of detainees who initially were held at the disposal of the Executive (PEN) and were later tried and sentenced by civil or military courts. One significant case history is described below:
12. Case 3917 – Horacio Oscar SARAGOVI
On February 22, 1979, the following was denounced:
On May 27, 1976, at 20.10 hours, at 4200 Avenida Díaz Vélez, in the Argentine Capital, a number of individuals—not yet identified—broke the window of a business by throwing a bottle of gasoline through it (which did not do any other damage) and also three in pamphlets referring to the “Cordobazo”, after which they fled in various directions.
Horacio Oscar Saragovi, an Argentine, 17 years of age, happened to be on the sidewalk in front of the business, waiting for a collective cab to take him to a Jewish center. When he saw what was happening he immediately left the heavily trafficked area, as did the other people around. On the next block, a plainclothes policeman detained one of these people—Saragovi—because he was coming from the direction of the event.
The policeman was approximately 130 meters from the scene of the events; it was nighttime and he did not have on the glasses he normally wore. Then, when the police car arrived, he detained two other people for the same reason.
Of the three detained, one was released at police headquarters the same day; another placed at the disposal of the Executive (PEN) and released after four and half months, because he had demonstrated that at the time of the events he was in a bar at the corner. The policeman had to admit that he was mistaken in both cases.
But Saragovi remained at the disposal of the Executive (PEN) and was brought before Standing Military Tribunal Nº 1/1, even though he had no record and was a minor (17 years of age at the time of the events). The records show clearly that the policeman lied, as did his witness; the two contradicted each other, were not eyewitnesses, and were guided by mere suspicions.
It is also known that before the trial, three members of the Tribunal made anti-Semitic statements against Saragovi. These were: the judge, the secretary and the prosecuting attorney.
Decision handed down
DECISION I: The trial lasted only one day, and the next day, November 17, 1976, Saragovi was sentenced to 6 years imprisonment for “altering public order” and “violence against members of the police force.”
What was brought to this trial was a weak police report, containing only the statements made by the policeman and his witness, (who, despite the claim that the two did not know one another, turned out to be the doorman at the apartment building where the policeman lived) and without evidence.
The only real eyewitness said that he did not recognize Saragovi as being at the scene of the crime.
Only five of the defense witnesses were heard, even though the defense proposed twelve witnesses, and those five witnesses spoke on Saragovi’s behalf.
The only time any statement was taken from Saragovi was on the day of the trial, near its end; at that point he was weak, since for the 48 hours prior to his testimony, he had been given neither food, water, nor permitted to rest, and had not been allowed to use the bathroom, seemingly due to someone’s error or oversight.
On the very day of the trial, seven months after the detention, the policeman said that he’d been “hit by Saragovi with a bar”, something that had never been said before, not even during the police investigation. However, because of this impromptu statement, young Saragovi was sentenced for “violence against the police,” a crime that he had not been accused of, not even by the district attorney; hence, he could not defend himself against the charge. Thus, a seemingly unimportant issue came to be the most important, even though the policeman himself described it as being “something of no importance.” Further, the bag was never presented during the trial nor had it been confiscated; this means that the alleged corpus delicti was not presented. There was no medical expert’s report concerning alleged injuries, because there was no injury at all.
It should be pointed out that a member of the military served as defense attorney; he was not a lawyer and did not intervene at any point during the trial. He was not given leave or anything else that would have enabled him to prepare the defense. The members of the Tribunal were not lawyers, except for the judge.
In order to draw out this description of juridical arbitrariness in the sentence and the absence of any defense during the trial, only some of the decisions will be described.
DECISION II: The earlier judgment was appealed on December 23, 1976, and the Supreme Tribunal of the Armed Forces overturned that judgment, because of “substantial error that affects the validity of the proceedings conducted,” and in order to “find the means to arrive at a just decision.”
DECISION III: Thus, the file was returned for another judgment on the issue. But it was returned to precisely the same Tribunal that had ruled on it earlier. The defense asked that the Tribunal decline and that the case be transferred to another Court, but the request was refused.
On March 28, 1977, during two hours of trial, the same judgment as the one handed down earlier (Judgment Nº 1) was again down with the same sentence.
DECISION IV: When appealed by the defense, the file was again returned to the Supreme Tribunal of the Armed Forces; but according to the Military Code of Justice, a military judgment cannot be declared null and void a second time; nor is the Court empowered to consider the evidence. When the Tribunal declares “that something is irrevocably proven,” nothing remains to be done.
This time, the Supreme Tribunal could do nothing, and confirmed the lower court judgment. Neither the military defense attorney nor the parents of the accused were notified officially of this decision. The parents were never notified of anything.
On September 13, 1977, a special remedy was filed before the Supreme Court, but there is little hope that the evidence or the facts will be considered in vies of the fact that it “is irrevocably proven…”.
Note should be made of the disproportionate severity of the punishment, even under the assumption that the alleged acts had been committed (and this is an assumption), especially since the Law of Minors should have been applied to Saragovi, who was born on June 5, 1958 and had not yet reached 18 years of age at the time the events occurred.
The Law of Minors, which was not applied, establishes a special procedure by recommending a series of guarantees since minors do not have the same responsibilities as adults. This law provides for the possibility of suspended sentence and also for a probationary period of one year to determine whether the individual can be rehabilitated when considered to be guilty; the minor is placed under the system of controlled or restricted freedom. None of this has been done in the case of Saragovi, quite to the contrary, the sentence is confinement instead of prison.
In summary, he has not had access to due process because of the atmosphere of intolerance, hate, and hostility that prevails in the country. A case has been built against Saragovi without proof and without his having had access to valid legal defense. The saddest part of this case is that Saragovi is genuinely innocent of the charges filed against him.
The Supreme Court did not consider the remedy because, it said, there were insufficient grounds. Thus, ended any other possibility of remedy.
The defense attorneys were not allowed to see the case file.
In a note received on March 27, 1980, the Government of Argentina replied to the Commission as follows:
A) Horacio Oscar SARAGOVI was found guilty on March 28, 1977, by Standing Special Military Tribunal Nº 1/1 and condemned to a sentence of six years of confinement as a criminally liable co-author of the crime of “alteration of the public order” and “incitement to group violence” and as author of the crime of “violence against the police force,” as a compound offense.
That sentence, which followed another that was declared null and void by a higher court, was in turn confirmed by the Supreme Tribunal of the Armed Forces; the complaint lodged before the Supreme Court in connection with that judgment was rejected in a decision handed down on November 9, 1978.
B) Hence, this is merely the legitimate action of the competent jurisdictional organ—specifically a military tribunal—in accordance with the legislation in force, by virtue of which the highest judicial organ of the nation even intervened.
The Commission has continued to process the case, and notes that in its judgment the Government’s reply does not sufficiently clarify the matters denounced; it is hoping for an elaboration and clarification of the allegations made.
C. Right of option to leave the country
1. The Argentine Constitution makes provision for the right to opt to leave the country as a temporary alternative for those individuals who, during a state of siege, prefer to leave Argentina rather than be arrested or transferred from one place to another at the disposition of the President, pursuant to the exceptional powers conferred upon him by the Constitution during those limited situations when the constitutional guarantees are suspended.5
2. On the basis of an analysis of the right of option, it can be said that this right has been seriously affected in two ways: 1) the Argentine Constitution grants this right unconditionally, as an alternative that an individual, arrested at the order of the Executive (PEN) has to resolve his situation; Law 21.339, on the other hand, has converted it into a merely discretionary power of the Executive, which contradicts both the letter and the spirit of the Constitutional provision; and 2) the Argentine Constitution provides that during a state of siege the President cannot impose punishment; but the option to leave the country, set forth constitutionally as a temporary solution, has been converted, through these regulations, into a double penalty. On the one hand, the delay in granting it—because of the troublesome processing and the unlimited judgment conferred upon the public authority in this regard—means that the detainee remains deprived of his freedom for too long a period of time; on the other hand, once the option is granted, exile is prolonged insofar as a voluntary right becomes a forced imposition for the duration of the State of Siege at the national level.
It should be added that the Government has confirmed, and said as much to the Commission during the on-site observation, that the subversive activity has been brought to an end and that the country enjoys tranquility and security, which is sufficient reason to contend that an indefinite prolongation of the state of siege is not justified. It should be added that, pursuant to the regulations in question, the individual who has opted to exercise the option to leave the country brings upon himself the threat that if he returns he will be punished by confinement.
3. Through the Statute of March 24, 1976, the right of option set forth in the Constitution was suspended; five days later, on March 29, any requests submitted prior to that date were declared invalid. Later, this suspension was extended, exercise of the option re-established, and then qualified through a set of regulations that made obvious the ostensible violation of this constitutional right.6
4. The Commission has sufficient information on cases of individuals who have been detained and who have repeatedly filed requests to exercise the right to leave Argentina, requests that have been delayed or refused on numerous occasions. There are also cases of individuals who have served their sentences, and then have been placed at the disposal of the Executive (PEN), so that they remained in prison, and who, under such circumstances have on a number of occasions requested the option only to be refused.
During the on-site observation the Commission, through its respective investigation, was able to confirm cases such as those mentioned below, both through the documents and testimony presented to it, and during the visits it made to the various prison centers in the country. Among others, the following examples may be mentioned:
a. Alberto Schprejer, detained in 1976, is in Unit 9 of La Plata, at the disposal of the Executive. No decision has been made on his request to leave the country; he has been granted a visa by the Government of the United States of America.
b. Luis Jorge Toledo, detained in 1976, is in Unit 9 of La Plata. He has a visa for the United States of America, but the time period for requesting the option expired in September 1979, without any decision being taken.
c. Rubén Alberto Rissi, detained on October 21, 1976, has been in the penitentiary in Mendoza Province for a number of years. No decision has been made on his request to leave the country; he has a visa for Spain.
d. Hebe Margarita Tizio, is being detained at the disposal of the Executive in Villa Devoto Women’s Prison. Her request to opt to leave the country has been denied.
e. Graciela Santucho, is being detained at the disposal of the Executive in Villa Devoto Women’s Prison, even though she has already served her sentence. She has a visa for Germany, but no decision has been reached on her request to leave.
f. Hugo Rubén Perie, completed a sentence of four-years imprisonment on July 22, 1979, but is still in detention. He was denied permission to exercise the right to leave the country as the Government was of the opinion that he constituted a real threat to domestic tranquility. He is in Rawson Prison.
g. Domingo Francisco Barbetti, was detained on February 26, 1976, the proceedings against him were discontinued in 1978, and he was then placed at the disposal of the Executive. He has requested the right to exercise the option, and has a visa for Sweden, but he has not yet been granted permission to exercise that right.
h. Gustavo Westerkamp, was detained in 1975 while he was preparing to do his military service. On two occasions he has been denied the right to leave the country to go to France.
i. Sebastian Ferrer, detained in 1975, is now being held in Unit 9 of La Plata. The proceedings against him were postponed in December of that year and he was placed at the disposition of the Executive. He is in possession of a visa for Sweden, but his request for the option to leave the country has been rejected on two occasions.
5. Through their diplomatic representations in Argentina, a number of countries have granted visas to hundreds of detainees. Special mention should be made of the case of the Embassy of Sweden which, as of September 14, 1979, had lists containing the names of 500 individuals to whom the Swedish Government had granted visas during the period 1978 to 1979, as they satisfy the requisite legal requirements, inter alia Law Nº 21.650 of September 26, 1977, in light of which the diplomatic representation of Sweden has issued the necessary papers.
When analyzing the administration of this right, it can be shown that, in some cases, the receiving countries set quotas for the admittance of detainees and that at the present time the number available through such quotas is greater than the number of requests granted by the Government of Argentina.
6. On September 6, 1979, the Ministry of the Interior made public a report on a number of aspects, in connection with this topic which the Minister delivered during his interview with the Commission. The report indicated that 779 requests for options to leave the country had been granted in accordance with Laws 21.449 and 21.650 of October 27, 1976, and September 26, 1977, respectively.
According to information provided by the Government, as of October 31, 1979, 1.285 individuals had asked to exercise the right to leave the country on the basis of Article 23 of the Constitution.
7. During the on-site observation, the Commission discussed this matter with the Argentina authorities. President Videla told the Commission that the right of option was being limited, but that in the future it would be more generous and offered more expeditiously. The Minister of Justice, Mr. Alberto Rodríguez Varela, made reference to the limitations raised by the Commission and argued that there were people who left the country and often returned clandestinely, only to continue as militants engaged in subversive activities; he added that the Supreme Court must decide on the constitutionality of this matter.
During its interview with the Minister of the Interior, General Harguindeguy, the Commission emphasized the need to systematize the exercise of the right of option to leave the country so as to facilitate its administration and make Article 23 of the Argentine Constitution more effective. During the analysis of this issue, the Minister of the Interior said that at the outset, very few options were granted, but that with time, more have been granted, and a Committee is convened twice each week to review the cases presented. He added that any limitation on the exercise of the right is due to the dangerousness of the individual or for security reasons, and that consideration was given to the varying degrees of control that the governments of the receiving countries might have over the individuals to whom the right to leave Argentina is granted.
D. House Arrest
1. House arrest is one form of detention governed by the Institutional Act of September 1, 1977, used by the President in the exercise of the exceptional powers provided for in Article 23 of the Constitution, bearing in mind the detainee’s personal record and the special circumstances surrounding the case.
According to public information provided by the Ministry of the Interior on September 6, as of that date, twelve individuals were under house arrest. During the course of its on-site observation, the Commission visited three of them: former President Isabel Martínez de Perón, the journalist Jacobo Timerman, and union leader Lorenzo Miguel.
2. Isabel MARTÍNEZ DE PERÓN
The former President is being held in a country house in San Vicente, Buenos Aires Province, at the disposal of the Military Junta and the Federal Criminal Court.
Before this, she was being detained at the “El Mesidor” Residence, located in the Province of Neuquén and at the “Azopardo Naval Arsenal” in the town of Azul, Buenos Aires Province.
According to reports received by the Commission, initially Mrs. de Perón was held totally incommunicado and under interrogation. At the present time she is allowed one visit per week from certain members of her family and her attorney.
Through the “Act to consider the conduct of those persons responsible for causing injury to the high interest of the nation,” and Resolution Nº 1, the Military Junta imposed a set of sanctions against her which include detention; loss of political and union rights; disqualification for office, employment, public office, and honorary posts; and a restriction preventing her from disposing of and administering her property, thereby obligating her to account for the acquisition of same within the last ten years.
Further, five criminal proceedings are underway in the federal criminal Court of Buenos Aires. The defense attorney asked that the proceedings be nullified; but the request was rejected in the lower Court and is now being considered by the Supreme Court. The criminal proceedings are following their legal course.7
3. Lorenzo MIGUEL
A prominent labor leader, Lorenzo Miguel is being held under house arrest at his home, in application of the Act issued on June 18, 1976, by a decision of the Military Junta. Mr. Lorenzo Miguel was Secretary General of the Metal Workers Union, and was regarded as one of the most powerful labor figures in the country.
During its on-site observation, the Commission visited him at his home. In the garage of his residence, an official specified the restrictions that apply to visits, which established that he is in fact under police surveillance.
Initially, Lorenzo Miguel was detained on board a boat in the Port of Buenos Aires, and was then transferred to the Magdalena Military Prison, where he remained for two and a half years. At this point he has been under house arrest for one year; he said that he is subject to many restrictions that are prejudicial not only to him but also to his family, as they disrupt the normal functioning of the family.
The police have him and his house under surveillance 24 hours a day which makes life difficult for his children. The only visits he can receive are those of close relatives on Saturdays and Sundays; his children are subject to the same restrictions.
Mr. Miguel said that he was not mistreated during his detention on board the boat and at the Magdalena Prison. He thanked the members of the Commission for the visit and introduced his wife, sister and children, the youngest of whom is 4 years old.8
4. Case 2502 – Jacobo TIMERMAN
On October 16, 1977, the following denunciation was received:
The journalist Jacobo Timerman was detained in April 1977 and then placed at the disposal of the Executive (PEN) according to an announcement made in the newspapers of April 23, 1977. Mr. Timerman was Director of the newspaper La Opinión of Buenos Aires, which frequently addresses the problem of human rights in Argentina.
In a note dated April 21, 1978, the Government of Argentina reported to the IACHR that “as of the 17th of this month, Mr. Jacobo Timerman will be in detention in his private home” at the disposition of the Executive.
In notes dated July 17, 1978 and May 18, 1979, the Commission requested new reports from the Government of Argentina. Subsequent to its on-site observation, on October 2, 1979, it received the following communication from the Government:
Excellency: I have the pleasure of addressing Your Excellency in order to transmit, for your information, the attached copy of the Supreme Court decision of September 17, 1979, concerning the rulings on TIMERMAN, Jacobo, writ of habeas corpus.
Further, the Military Junta ordered that the measure of loss of Argentine citizenship be applied against him which means that the individual in question is no longer a naturalized Argentine citizen and is left with his Russian nationality of origin, since he was born in the city of BAR-USSR.
It should be added that he was also ordered expelled from the country which occurred September 25, 1979, Aerolíneas Argentinas flight 116, destination Israel.
Accept, Excellency, the assurances of my highest consideration.
During its stay in Argentina, the Commission visited Mr. Jacobo Timerman under house arrest in the Capital, which included the presence of a Deputy and various policemen. Custody was on a rotating basis and there was strict surveillance of visits, telephone calls and correspondence. With regard to the condition of the journalist, Mr. Timerman explained to the Commission that he had been engaged in political and independent journalism for thirty years and that he used the pages of the newspaper to fight subversion from the Montoneros on the left and the “Triple A” on the right. He added that 10 days prior to his arrest, the Minister of the Interior denounced him for having published various writs of habeas corpus in connection with some disappearances as his newspaper had taken very seriously the promotion of human rights in Argentina.
The Institutional Act of June 18, 1976, was applied to Mr. Timerman by means of the November 1977 Resolution (Nº 6) of the Military Government Junta and he was placed at the disposal of the Executive by Decree 1093/77. The Institutional Act includes, among other measures, a prohibition against practicing the profession for which one was licensed, in this particular case, journalism.
The Commission confirmed the condition under which Mr. Timerman was being detained. In its judgment, it was punitive in nature and the conditions went considerably beyond the minimum conditions necessary for the custody of the detainee.
E. The system of restricted liberty
1. The system of restricted liberty permits an arrest ordered by the President, during a state of siege, pursuant to Article 23 of the Constitution. The Military Tribunal is empowered to confine persons in the place determined by the Executive (PEN) for as long as that person remains at its disposal.9
Prior to and during the on-site observation, the Commission received reports and testimony concerning the system of restricted liberty and spoke with persons who have been subject to that system.
2. The regulations enacted by the Military Government in connection with the system in question include the Statute of September 1, 1977, the law of that same date whereby the Advisory Committee to the President of the Nation is established, and the law of September 27, 1977, providing specific regulations on these forms of detention.10
3. Arrest under the system of restricted liberty, in accordance with the regulations in force, is ordered through a Presidential decree where the following is indicated: a) the place where the arrested individual must remain; b) the geographic limits within which he may move; c) the military, security or police authority to whom the arrested individual must report.
The individual arrested under these circumstances cannot move outside the established limits and must fulfill the following obligations: a) appear voluntarily before the military, security or police authority assigned, every three days during the first two months of arrest, and every seven days there after; b) appear before the same authority when so instructed by the latter; c) abstain from engaging in any specifically prohibited activity; d) abstain from participating in public or private meetings except those of a purely family nature.
4. The report made public by the Ministry of the Interior on September 6, 1979 on detainees at the disposal of the Executive (PEN), stated that as of that date 180 individuals were under the system of restricted freedom, 20 of whom were placed under that system between August 22 and September 6 of that year.
F. Statements concerning the physical liberty of persons, received by the Commission during the on-site observation
1. To conclude this chapter, the Commission would like to address certain statements and evidence that it collected during its visit in Argentina.
The majority of entities involved in human rights, the Catholic Church, professional and political groups and individuals, told the Commission of their concern over prolonged detentions where the detainees are unable to exercise their constitutional rights such as those of defense and the right to due process. However, these individuals and entities agreed that because of the special circumstances that prevailed in the country during the immediately preceding years, detentions under the Executive power (PEN) were one of the measures used to combat subversion.
Without exception, the groups that expressed this concern also expressed a desire for a swift and complete return to the legal system; for this to occur they considered it essential that the various cases of PEN detainees be resolved first. It was said that merely by complying with the provisions of the Constitution and the laws, this problem would be reduced to reasonable proportions.
2. It is important to point to the statement made by the Argentine Bishops’ Conference in its document entitled “The Roads to Peace”, which states the following:
Finally, there is something that is very difficult to justify: lengthy detentions, with the detainee unable to defend himself or even to know the reasons for his imprisonment, which is even more difficult to justify inasmuch as the prison situation at times does not make provision for even minimum human needs, including religious needs.11
3. This issue was raised with all the various authorities with which the Commission had an opportunity to speak during the course of the on-site observation. For their part, such authorities as the Military Junta, the President, the Ministers of the Interior and of Justice, the Supreme Court and the federal Court of Appeals were receptive to the idea of finding a gradual solution to this problem. Thus, for example, the Minister of the Interior said that the total number of detainees at the disposal of the Executive was at one time 5,018, while at present it was approximately 1,400; this, he said, showed that progress has been made toward solving this problem. Of those 1,400, approximately 800 are exclusively under the PEN, without having been charged or tried. The remainder, apart from being at the disposal of the PEN, are being brought to trial and some have been sentenced.12
The Minister added that when the Court orders the release of a detainee or when the Executive has knowledge that this is going to occur, in order to avoid a collision between these two branches of Government, the release is ordered, the right of option is granted, or the individual is expelled from the country, thereby resolving any eventual conflict. However, he noted, the only grounds for detaining an individual exclusively under the PEN is Article 23 of the Constitution and he explained the legal reasons for the extension of these exceptional measures, it being understood that the Executive is subject to the control of a Court as to the reasonableness of the detention. The Minister indicated that in his judgment there is no fixed time period for the detention since the system of exception is ordered for reasons of security and as long as those reasons are valid, the Executive is allowed to keep an individual in detention. He also noted that the Advisory Committee created for this purpose meets each week and settles many of these cases.
For his part, the Minister of Justice pointed out that for the bulk of the Argentine population the existence or nonexistence of individuals detained under the Executive power, or sentenced, was not a major concern; but abroad pressure had been strong on this issue. If the Government was paying a price for keeping these persons in detention, the Minister explained, it was because they were dangerous and willing to kill. He added that this was a Government under which the independence of judges was guaranteed and their decisions respected.
4. Both in the interview with the President of the Supreme Court and with members of the federal Court of Appeals, the Commission was given an explanation of the reasonableness of the prolonged detentions; it was pointed out that, at present, most judges ask the Government to clarify its report as to the reasons for maintaining a person in detention, and if the report was found to be unsatisfactory, the members of the Judiciary release the detainee.
Further, they said that under the Constitution there was no limit on detention and that Argentine legal tradition indicated that the period of detention could not be controlled because this would imply an intervention on the part of the Judiciary in the Executive branch; but that at the present time, thanks to the jurisprudence of the Court, based on the theory of reasonableness, progress has been made in terms of limiting the length of a prolonged detention.
5. The IACHR wishes to reiterate its position in this regard by indicating that despite the fact that the constitutions of the American countries, including that of Argentina, allow temporary suspension of certain rights during irregular periods, as is the case with the guarantee against arbitrary arrest, in cases of danger to the internal peace or security of the State, the suspension should be applied only insofar as it is necessary, for specific time periods, and solely for the purpose of correcting the reasons for the suspension.
Further, it is clear that the international legal norms in the area of human rights provide for this very situation, but there are no international legal norms that justify prolonged detentions pursuant to the exceptional powers of the State of Siege, even less so in order to keep people in prison without bringing charges against them for violations of national security or any other type of laws and depriving them of the exercise of their due process guarantees.
G. The situation of those in asylum
1. To conclude this chapter on personal liberty, the Commission will refer to the prolonged confinement of individuals in a place subject to diplomatic immunity, which constitutes a violation of the freedom of the individual in asylum. In Argentina, this situation has emerged in the cases of individuals in asylum in the Embassy of Mexico in Buenos Aires.
2. Dr. Héctor J. Cámpora, former President of the Republic, and his son, Dr. Héctor Pedro Cámpora, sought asylum in the Embassy of Mexico in Buenos Aires on April 13, 1976. On April 20 of that year, Dr. Juan Manuel Abal Medina, a Peronist leader, sought asylum in that same Embassy. The three individuals in question sought asylum because of the military takeover of March 24, 1976.
The Commission received a complaint on behalf of former President Cámpora and his son, to the effect that the Military Government did not grant the corresponding safe conducts; the corresponding parts of that denunciation were forwarded to the Government of Argentina in accordance with the Commission’s regulatory procedure. The Government of Argentina sent the following reply to the Commission:
CÁMPORA, Héctor J.: Is now in asylum in the Embassy of Mexico, a fugitive from justice. He is subject to the Act of Responsibility, through Resolution Nº 2 of the Military Junta.
3. On November 26, 1979, the Government of Argentina, in view of the seriousness of Dr. Héctor J. Cámpora’s illness, finally granted him the corresponding safe conduct. Dr. Cámpora left Argentina the next day. However, as of the date of approval of the present Report, his son Héctor Pedro Cámpora and Dr. Juan Manuel Abal Medina are still in asylum in the Embassy of Mexico.
4. In the Commission’s opinion, the purpose of territorial and diplomatic asylum is to safeguard the freedom, safety and physical integrity of individuals. Any individual who considers himself the object of persecution may seek asylum, although asylum may be granted only by the state to which this right belongs. However, the Commission considers that the prolonged confinement of an individual in a place protected by diplomatic immunity constitutes a violation of the freedom of the individual in asylum and it thereby becomes a form of excessive punishment.
1 The American Declaration of the Rights and Duties of Man states:
Article I – Every human being has the right to life, liberty and the security of his person.
Article XXV – No person may be deprived of his liberty except in the cases and according to the procedures established by pre-existing law. No person may be deprived of liberty for nonfulfillment of obligations of a purely civil character.
Every individual who has been deprived of his liberty has the right to have the legality of his detention ascertained without delay by a court, and the right to be tried without undue delay or, otherwise, to be released. He also has the right to humane treatment during the time he is in custody.
2 On September 1, 1977, also through an Act of the Military Junta, a Presidential Advisory Commission was created to examine and advise on the situation of persons arrested at the disposal of the Executive. The Commission’s members are one representative from each of the Armed Forces; the Assistant Secretaries of the Interior and Justice, and Assistant Secretary “A” of the State Intelligence Secretariat. The Minister of the Interior chairs the Commission.
3 Consideration will be given below to the view of the Supreme Court and the federal Court of Appeals on the principle of reasonableness in determining justification for detentions sine die ordered by the Executive.
4 During its on-site observation, the IACHR visited the country’s major prisons and held extensive conversations with detainees. In La Plata and Caseros prisons, a total of 600 notes were received which have been analyzed by the Commission. Most of the inmates mentioned their legal status, the limited possibilities of exercising their constitutional guarantees, such as the right to due process, the right to a legal defense, the right of option to leave the country, and also referred to the treatment they received while in detention. A considerable number of letters refer to detainees under PEN, held without legal charges and without any trial.
5 Article 23 of the Constitution reads as follows: “In the event of internal disorder or foreign attack endangering the operation of this Constitution and of the authorities created thereby, the Province or territory in which the disturbance of order exists shall be declared under a state of siege and the constitutional guarantees shall be suspended thereto. But during such suspension the President shall not convict or apply punishment upon his own authority. His power shall be limited, with respect to persons, to arresting them or transferring them from one point of the Nation to another, if they do not prefer to leave Argentine territory.”
6 Statute of March 24, 1976: the right of option to leave the country is suspended. Law 21.275 of March 29, 1976: all requests for the right of option submitted during the period of effect of that law are invalid, regardless of the stage of processing. Law 21.448 of October 27, 1976: provides a period of 180 days for the suspension of the right of option. Law 21.449 of October 27, 1976: provides that individuals detained under the Executive may ask to exercise the right of option, but that the PEN shall grant it exclusively to those detainees that it feels will not jeopardize the peace and security of the Nation if allowed to leave. It adds that the PEN must decide upon the request within 90 days of its presentation, and must deny it if it does not meet the conditions listed; that when the right is denied him, the interested party may present another request, six months after the first request. The same law states that the individual who exercises this right and leaves the country is forbidden to return until the state of siege is lifted, unless the Executive expressly authorizes his return or the person will be detained by immigration or police authorities upon his return; violation of this prohibition is punishable by four to eight years in prison. Law 21.568 of April 30, 1977: extending for 150 days, effective May 1 of that year, the suspension of the right of option. Statute of September 1, 1977: lifts the suspension of the right of option and establishes that the individual arrested at the disposition of the Executive can exercise the right, but that the President may deny that right when in his judgment the arrested individual could pose a danger to the peace and tranquility of the country if he were allowed to leave. Institutional Act of September 1, 1977: creates the Advisory Committee to the President, in order to analyze and provide advice on the situation of individuals arrested at the disposal of the Executive, presided over by the Minister of the Interior and composed of representatives of each one of the Armed Forces, the Under Secretaries of the Interior and Justice and by an Under Secretary from the Secretariat for State Intelligence; the Committee, among its other functions, provides advice concerning the release of individuals arrested, or advice on whether the right of option to leave the country should be granted. Law 21.650 of September 26, 1977: governs the Institutional Act of September 1 of that year and provides that ninety days after the date of the decree ordering their detention, those arrested at the disposal of the Executive may submit requests to leave the country, which must be processed by the Ministry of the Interior; further, this Law sets the following requisites: a) the request must indicate the country of destination, with certification from the diplomatic authority of that country attached, to the effect that the individual under arrest is being accepted; b) the President shall grant or deny the request within 120 days of its receipt at the Ministry of the Interior; c) six months after a rejection is issued, another request may be submitted; and d) requests submitted prior to the enforcement of that law, which conform to the provisions contained in Law 21.449, shall be processed and decided in accordance with its provisions. The most recent precedents for these various provisions are a number of decrees enacted prior to March 24, 1976, which include the following: Decree 807 of April 1, 1975: establishes standards for exercising the right of option; Decree 642 of February 17, 1976: establishes standards on the exercise of the right of option, and stipulates that no authorization to leave shall be granted when a country within this hemisphere has been chosen. Decree 1078 of March 23, 1976: establishes the time period for presenting reports on the right of option, which must be compiled by the Ministry of the Interior and channeled through the Federal Police.
7 The IACHR visited Mrs. de Perón at her residence. The former President made a public statement at that time. In view of the political significance of Mrs. de Perón, the Commission felt it appropriate to include her case in this report, even though it does not have any official denunciation concerning her present status on record.
8 The IACHR wishes to point out that no formal denunciation has been received in connection with this case, but because of the public importance of the case, it is presented in this report as general information.
9 The Institutional Act of June 18, 1976, paragraph e) of Article 2.
10 Article 2 of the Statute of September 1, 1977, provides that an arrest ordered by the President can be carried out, inter alia, “in the place determined in each case, by establishing the boundaries of movement of the individual arrested under a system of restricted liberty.” The Law of September 1, 1977, empowers the Advisory Committee to the President, among other things, to advise as to how to carry out the arrest ordered by the President. Articles 5 and 5 of Law 21.650, of September 26, 1977, set forth the various requisites that must be satisfied in an arrest under the form of restricted liberty.
11 “Maestros de la Fe” – The Roads to Peace (Argentina Bishops’ Conference) – Ediciones Don Bosco, Argentina and Editorial Claretiana, Buenos Aires, 1978, page 20.
12 Subsequently, through a note dated November 20, 1979, the Ministry of Foreign Affairs sent the Commission the names of 1,638 individuals who, as of October 31, 1979, were being detained at the disposal of the Executive (“PEN”). According to the information provided by the Government detentions during the State of Siege have evolved as follows:
|From Nov. 6, 1974 to March 23, 1976||
|From March 24 to Dec. 31, 1976||